As I argued in a long post (with citations) on the meaning of Brown, Marshall’s long march leading to Brown involved argument after argument in legal briefs undermining the legitimacy of racial classification by the state. Examples:
- Classifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws. Sipuel v. Oklahoma State Board of Regents, 332 U.S. 631 (1948)
- There is no understandable factual basis for classification by race. … Sweatt v. Painter, 339 US 629 (1950)
- Racial criteria are irrational, irrelevant, odious to our way of life and specifically proscribed under the Fourteenth Amendment. McLaurin v. Oklahoma, 339 U.S. 637 (1950)
Thus it should be no surprise that Marshall argued the same thing in Brown:
The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone. The State of Kansas has no power thereunder to use race as a factor in affording educational opportunities to its citizens. [Marshall’s Brief in Brown, p. 5]
As Robert Carter, who signed the brief and argued Brown along with Marshall, asserted in the oral argument, “our position is that there is no rational basis for classification based on race.” I could go on (as in fact I did in the long post linked above).
Similarly, the Civil Rights Act of 1964, which Rich still claims to regard as an icon, requires official colorblindness as clearly as words can (even though courts have “construed” it otherwise). Thus, in Title VI:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
“Lest this be unclear,” as I noted here, and as it apparently is to Rich et al., “the Department of Justice’s Title VI Legal Manual explains that discrimination occurs when ‘similarly situated persons are treated differently because of their race, color, or national origin.’”
In his later years Thurgood Marshall abandoned the principle that he advocated so effectively in his earlier years, the principle embodied in his greatest success, Brown, and the Civil Rights Act providing that every American should be treated “without regard” to race, creed, or color. Like most liberals of his and subsequent generations, he began to demand color consciousness instead of colorblindness, preferential treatment instead of equal treatment.
Frank Rich is perfectly free to agree, as he does, with the later Marshall, to prefer color-conscious preferences to colorblind equality. What he is not free to do is what he did in his July 4 column (a reprise of similar arguments in many columns): accuse those who still adhere to the colorblind principle articulated so well by Marshall over the years and embodied in Brown and the Civil Rights Act of being “self-righteous” and “delusional.”
If there is anyone in the ongoing debate over civil rights who richly (if you’ll pardon the pun) deserves to be described as self-righteous and delusional, it is Frank Rich himself.